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Lawsuit: TSA used reorganization as pretext for discrimination

On behalf of Philip Taubman of Taubman Kimelman & Soroka, LLP posted in Workplace Discrimination on Tuesday, July 11, 2017.

A class of some 300 current and former air marshals claims that the Transportation Security Administration used a cost-saving and reorganization plan to weed out older, more highly compensated employees in violation of the Age Discrimination in Employment Act.

An initial hearing before a federal court resulted in a win for the plaintiffs, as the judge found that they had "raised a genuine issue of material fact as to whether the Service's preferred reasons for the closure decisions were pretext for age discrimination."

The situation arose when the agency closed field offices in a number of cities, such as Pittsburgh, Cleveland, Cincinnati, San Diego, Phoenix and Tampa. The plaintiffs say the TSA specifically targeted offices for closure because over 90 percent of the marshals at those offices were over 40, the threshold set by the ADEA.

"It is the TSA's intent to force older workers from federal service and it is the TSA's desire that the older workers will in fact quit due to the closure of the field offices and the mandatory office reassignment," says the lead plaintiff.

Many of the air marshals did resign rather than face reassignment to a new city.

For others, the lead plaintiff claims, the agency made "any potential move to other offices extremely difficult, expensive, unpalatable, and problematic."

Why would the agency try to get older air marshals to quit? Because they make so much more money than younger, less experienced workers. A "purge" or the older workers will allow the agency to "hire two young field air marshals for every older field air marshal," according to the complaint.

Disparate impact claim turned back

The class had also attempted to prove that the TSA policy, while apparently neutral, had an unfair effect on older workers. This is called a disparate impact claim.

The federal judge ruled that the plaintiffs' experts had failed to provide sufficient statistical evidence to show that a neutral policy was adversely affecting workers over 40. He gave the plaintiffs two weeks to amend their lawsuit to focus on the claim that the policy was a pretext.

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